Title Registration: Statute And Processes Flashcards
Deed? Written instrument?
Deed - s1
Written instrument - s2 LP(MA)A1989
Electronic registration?
93 2002
Which section for the registration of mortgages, easements, leases >7 years?
S.27 2002
When don’t you need a deed to create registrable legal rights?
Short leases
When don’t you need a written instrument to create equitable rights?
Implied trusts
S. 53(2) 1925
Proprietary estoppel
To remedy unconscionable conduct - Taylor’s fashions
Mirror, cuts in and insurance principles?
Mirror - register should be a totality of rights and interests concerning title of land
Aim - to eradicate uncertainty, make land more alienable.
Doesn’t happen in practice due to OIs. But have s.71 duty to disclose OIs so can bring onto register when the land changes hands.
Curtain
Implied trusts.
Can overreach if have consent or two legal owners.
E interests aren’t destroyed on transfer, they are converted into money.
Curtain principle fails when statutory conditions cannot be met, e.g. Boland where bank failed to loo behind the curtain.
Insurance
S.58 title guarantee. If title registered it is guaranteed by the state (though not if privatisation of the land registry occurs).
Contrast - Hong Kong where cap on indemnity offered, so eroded confidence in the system.
Two sections that go hand in hand for guaranteeing title?
S.58 title guarantee
S.23 owners powers - once registered you can do what you like with the land, sell it etc.
Difference between schedule 1 and schedule 3?
Schedule 1 - OIs which bind on first registration
Schedule 3 - interests binding on transfer
For special priority rule what is the transferee bound by?
S.29
Any registered estate or interest
Any interest entered into register (Notice)
OIs in schedule 3
Leasehold covenants
Note that losing priority does not extinguish the right, can be used for other purposes, but cannot take effect against the purchaser (Rosefair v Butler)
3 key statutory provisions rectification?
Types of mistake?
Schedule 4 - rectification
S.65 - provision relations to when alterations can be made
Schedule 8 - indemnity
Administrative. Walker v Burton
Type 2. Where prejudicially affect title of another
Swift, Goldharp, Baxter, Malory, Fitzwilliam, Roberto Mac, cooper v Gick.
Have to ask if there has been a mistake, has it caused loss, can it be corrected without causing loss?
Compulsory first registration?
S.4 2002
Any unreg estate has to be registered on s.28 or s.29 transfer
For leases they have to be >7 years for this to apply.
Get 2 months from sate of transfer, otherwise transaction void.
Have to register protected interests. S.71 duty to disclose (on new RP to disclose interests which are overriding when he applies for registration)
Note can’t register a nullify (s.33)
What are the rules for when registering a protected interest?
Unilateral notice - can be entered without RP’s consent. RP can challenge
Might use this where don’t want details (e.g. Rent paid) to be publicly available.
Agreed notice - where RP acknowledges right and agrees to its entry in the register.
S.33 - details what can’t be protected via a notice
Interests under trust of land, coal mining rights, leases
Section for overreaching? What are the two conditions?
S.2 1925
Need two legal owners to consent to the sale.
- Right must be capable of being overreached
E.g. Right behind a trust of land. Co-ownership. Doesn’t matter if came form implied trust or estoppel. - Formal conveyancing must be observed
Flegg
For registration of an interest which overrides when will a right (which usually qualifies) not qualify?
Where it has been postponed to the interest of RP.
This can occur in three ways:
1. Overreaching Flegg cf Boland
2. Later in time Cann, Southern Pacific Mortgages
3. Consent. If owner of interest has consented to RP having priority then they can t reclaim it. Prestridge, mercantile v Wishart.
Schedule 3 OIs.
What must you talk about?
What do the interests have to be for them to override?
What are the exclusions?
S.29
Have to be in actual occupation, discoverable, need to be proprietary in nature, and exist at the relevant time.
Exclusions:
1. ENQUIRY where RP has made an inquiry but rights holder didn’t disclose then the rights holder won’t be able to claim an OI (Thompson v Foy)
Except where it isn’t reasonable to disclose, e.g. At a family gathering (Begum v Issa)
2. If lease granted to take effect >three months in advance but tenant hasn’t entered actual occupation it won’t bind. No OI
3. If not obvious on reasonable careful inspection of the land then it won’t bind (providing the transferee didn’t know about the rights)
Don’t have to actually make the inspection (Thompson v Foy) but needs to be discoverable in theory.
Needs to be in actual occupation at time of s.29 transfer Cann, southern Pacific, to avoid registration gap.
4. Equitable easements are excluded.
Most legal easements require registration anyway(s.25, schedule 2)
Legal easements will be OIs if
Schedule 3(3): for ST: obv in reasonably careful inspection of the land, the purchaser knows of the easement, has it been used in 12 months prior to the transfer? DT - becomes annexed to land (Wall v Collins)
Remember implied easements take on the character of the doc they are implied into, so will only be legal of the transfer was done by deed (not by written instrument).
